## Facts

- Upjohn Co.’s general counsel learned that a foreign subsidiary had made questionable payments to foreign officials to obtain business.
- Upjohn’s general counsel initiated an internal investigation with outside counsel’s assistance.
- Company attorneys sent questionnaires to foreign managers seeking information about the payments; completed questionnaires were returned to the general counsel.
- Counsel interviewed recipients and other employees and created notes and memoranda of those interviews.
- Upjohn voluntarily reported the payments to the SEC and the IRS.
- The IRS opened a tax investigation and issued an administrative summons under 26 U.S.C. § 7602 seeking the questionnaires and counsel’s interview notes and memoranda.
- Upjohn refused production, asserting attorney-client privilege and attorney work-product protection.
- The district court ordered enforcement of the summons.
- The Sixth Circuit rejected waiver but applied the “control group” test to limit corporate privilege and held the work-product doctrine inapplicable in IRS summons enforcement.

## Issues

1. Whether the corporate attorney-client privilege protects communications between corporate counsel and non-control-group employees made to obtain legal advice for the corporation.
2. Whether counsel’s interview notes and memoranda created during an internal investigation are protected work product against an IRS summons and, if so, what showing is required to compel production.

## Decision

- The Supreme Court reversed and remanded.
- The Court rejected the Sixth Circuit’s “control group” test as too restrictive and inconsistent with the purpose of the privilege.
- Communications by employees to corporate counsel were privileged when made at the direction of corporate superiors to secure legal advice for the corporation, concerning matters within the employees’ duties, and with employees aware the purpose was to obtain legal advice for the corporation.
- The Court held that counsel’s interview notes and memoranda were protected by the work-product doctrine, including heightened protection for materials revealing attorneys’ mental impressions.
- The Court rejected the view that work-product protection is unavailable in IRS summons enforcement and found the government had not made the showing needed to obtain the materials on the record presented.

## Legal Principles

- The corporate attorney-client privilege may extend to employee communications with corporate counsel when the communications are made to enable counsel to provide legal advice to the corporation and are within the scope of the employees’ corporate duties.
- Limiting corporate privilege to senior management communications (“control group” test) improperly impedes counsel’s ability to gather information necessary to advise the corporate client.
- The privilege protects communications, not underlying facts; the government may seek the facts by interviewing employees directly.
- Attorney work product applies to materials prepared in anticipation of litigation in the IRS summons context.
- Opinion work product reflecting an attorney’s mental impressions receives special protection and is not compelled by a routine showing of need and hardship.

## Conclusion

The Court held that corporate privilege is not confined to senior management communications and that internal-investigation materials, including attorney interview notes and memoranda prepared in anticipation of litigation, are protected work product not subject to compelled disclosure to the IRS absent an adequate showing.


Upjohn Co. v. United States, 449 U.S. 383 (1981)